Coast-United Advertising, Inc. v. City of Long Beach

• Decision Date: 26 September 1975
• Docket Number: COAST-UNITED
• Citation: 124 Cal.Rptr. 487,51 Cal.App.3d 766
• Court: California Court of Appeals Court of Appeals
• Parties: ADVERTISING, INC., a corporation, doing business as Bench Ad Company, Plaintiff and Appellant, v. CITY OF LONG BEACH, a Municipal Corporation, Defendant and Respondent. Civ. 45857.

Page 487

124 Cal.Rptr. 487

51 Cal.App.3d 766

COAST-UNITED ADVERTISING, INC., a corporation, doing business as Bench Ad Company, Plaintiff and Appellant, v. CITY OF LONG BEACH, a Municipal Corporation, Defendant and Respondent.

Civ. 45857.

Court of Appeal, Second District, Division 2, California.

Sept. 26, 1975.

Hearing Denied Dec. 11, 1975.

Martin J. Barab, Los Angeles, for plaintiff and appellant.

Leonard Putnam, City Atty., and Phil J. Shafer, Deputy City Atty., for defendant and respondent.

BEACH, Associate Justice.

Plaintiff is a company whose business involves selling advertising on bus benches. Defendant City of Long Beach passed an ordinance prohibiting 'advertising, words, pictures, drawings, or designs . . . on any bench . . .' ¹ after July 1, 1974. Plaintiff sued for declaratory relief and for preliminary and permanent injunctions. Defendant made a motion for summary judgment, which was granted. Plaintiff appeals from the judgment.

FACTS:

The complaint raised various constitutional objections to the Long Beach ordinance. The motion for summary judgment and supporting affidavits explain the history of the bench ad proscription and argue its constitutionality. In opposition to the motion for summary judgment, attorney for appellant filed a declaration stressing the unconstitutional vices of the ordinance. The declaration of Glenn Warner, appellant's vice president and general manager, emphasizes that he believes Long Beach merely wants to replace appellant's benches with city benches provided through a federal grant; he also stresses the allegedly discriminatory effect of the ordinance in that it affects benches but not other forms of outdoor advertising.

CONTENTIONS ON APPEAL:

1. The trial court abused its discretion in granting the motion for summary judgment; there were triable issues of fact, including discriminatory classification as opposed to other outdoor advertisers and unreasonable classification unrelated to the legislative purpose of the ordinance.

2. The legislative purpose of the ordinance, being solely aesthetic, is invalid.

3. The court erred in concluding a municipality can properly classify and create special legislation aimed at advertising which appears on the public right of way while at the same time excluding signs which appear on private property under the so-called 'aesthetic police power.'

4. The ordinance is invalid under the First and Fourteenth Amendments to the United States Constitution; it is overbroad in unreasonably proscribing free speech.

5. The trial court erred in granting the motion when appellant's affidavits evidenced that facts essential to justify opposition existed but could not then be presented.

DISCUSSION:

'Where it appears by agreement or otherwise that there is no material issue of fact to be tried and that the sole question remaining before the trial court is one of law as to whether the claim of the moving party is tenable on the undisputed facts, it is the duty of the trial court on a motion for a summary judgment to hear and determine the issue of law. (Citations.)' (Burke Concrete Accessories, Inc. v. Superior Court, 8 Cal.App.3d 773, 775, 87 Cal.Rptr. 619, 620.) Appellant herein claims that the constitutional issues raised require a determination of facts so that summary judgment was not proper and a trial on the merits should be held. Respondent contends that no material factual issues have been raised and that the ordinance as a matter of law is constitutional. We agree with respondent.

a. Equal protection.

Appellant argues that other forms of outdoor advertising have not been proscribed by the subject ordinance and that there has been unequal protection of the law. It is true that other forms of advertising (e.g., billboards) have not been made illegal by Ordinance No. C--5123. When economic regulation is involved, legislation has been invested 'with a presumption of constitutionality . . . requiring merely that distinctions drawn by a challenged statute bear some rational relationship to a conceivable legitimate state purpose. (Citations.)' (Westbrook v. Mihaly, 2 Cal.3d 765, 784, 87 Cal.Rptr. 839, 852, 471 P.2d 487, 500.)

According to the affidavit of Phil J. Shafer, Long Beach Deputy City Attorney partly responsible for preparation of the ordinance, the passage of the ordinance 'is a further, necessary step to carry out the program of beautifying the City in order to protect the City's investments and preserve and promote the economic and commercial well-being of the City.' Counsel for appellant, in his affidavit, declared the intent of the City Council was to discriminate against his client in favor of all other forms of outdoor advertising and that the city itself is planning to apply to the federal government for a grant for (non-advertising) bus benches. ²

The city has a right to discriminate as long as the discrimination is reasonable and not arbitrary or capricious. In trying to improve the aesthetic appeal of its public streets, it need not abolish all unaesthetic elements immediately. 'A legislative body may 'eliminate some of the causes of an evil without attacking all of them . . ..' (Citation.)' (McMahan's Furniture Co. v. City of Pacific Grove, 219 Cal.App.2d 732, 736, 33 Cal.Rptr. 476, 479. See also Metromedia, Inc. v. City of Pasadena, 216 Cal.App.2d 270, 277, 30 Cal.Rptr. 731.) Furthermore, there is no reason the city cannot erect its own non-advertising bus benches; its aesthetic and economic purposes would be accomplished and passersby would still be afforded a place to sit.

Appellant asserts that the summary judgment procedure is inadequate to decide such fact questions as appellant claims are here presented. In support thereof appellant cites cases for the proposition that questions of improper motives for discrimination cannot be decided and therefore should not be considered on motions for summary judgment since a material issue of fact is inevitably involved. (D'Amico v. Board of Medical Examiners, 6 Cal.App.3d 716, 727--728, 86 Cal.Rptr. 245; G & D Holland Construction Co. v. City of Marysville, 12 Cal.App.3d 989, 91 Cal.Rptr. 227.)

Holland, supra, involved the rezoning of a block of land, purportedly to halt the building of a housing project designed for lower income families. The city argued that the rezoning to lesser density housing was justified in that the sewerage system in the area had been overloaded and high density housing would increase the problem. The court stated 'The issues framed by the pleading evoked judicial review more intense than that posed by a generalized exercise of police power. They called upon the trial court to determine whether the city council's action represented a discriminatory exercise of legislative power or a choice between legitimate environmental values. In its inquiry the court was not limited to the face of the ordinance, but could receive evidence of its immediate purpose, its ultimate objective and of the circumstances attending its adoption. (Citations.) Seldom may such an inquiry be pursued through the brusque summary judgment procedure . . ..' (Holland, supra at 996, 91 Cal.Rptr. at 231.)

D'Amico, supra, 6 Cal.App.3d at 727, 86 Cal.Rptr. 245, involved a statute separately classifying osteopaths and graduates from medical schools. The appellate court held that the issue should not be determined by demurrer but should receive a full scale hearing. "(W)here the determination whether a statute is unreasonable, arbitrary or not related to the ends proposed turns on factual considerations, the court may consider such facts and hear evidence with respect thereto.' (16 C.J.S. Constitutional Law § 97, p. 356.) Courts will not interfere except where constitutional rights are invaded. 'But courts are not limited in their inquiry to those cases alone where such a situation is shown upon the reading of the statute. They will consider the circumstances in the light of existing conditions.' (In re...